WORKERS' COMPENSATION ATTORNEY MISSOURI
Missouri enacted Workers’ Compensation Legislation in 1925 that was intended as the “Grand Bargain” between employers and employees. Employees were supposed to obtain quicker medical and lost time benefits without having to prove that the employer did anything wrong. An accident at work is compensable so long as the injured worker was at work performing his/her normal work activities. In exchange, employees gave up the right to file a civil lawsuit against the employer which severely capped the amounts they could recover. Damages for issues such as pain and suffering, loss of consortium, and punitive remedies were specifically removed under the statute. Instead, employees were limited to scheduled losses of disability based upon a chart.
However, as the years have gone on, the Workers’ Compensation Act has become more complicated which has necessitated for injured workers to obtain the assistance of an attorney to help make certain that their rights are fully protected. Insurance companies have aggressively sought to deny claims, stop medical care, and do all that they can do to remove or reduce payments of benefits to injured workers.
If you are injured at work, it is important to note that you are not suing your employer but instead simply making a claim against their workers’ compensation insurance company for injuries that occurred while you were working. Moreover, if you need an attorney, you are not billed by the hour or required to provide any form of retainer. Instead, the attorney will charge on a contingency basis which means the attorney will receive a portion of the settlement or award and we will not be paid unless you are paid.
Additionally, the attorney will pay the expenses on the case which will be repaid from the award or settlement. Because the percentage is the same regardless of whether you hire an attorney right after the injury or months later, it makes sense to bring in an attorney earlier so they can advise you through the entire process for the same attorney fees.
When you are hurt on the job, there are typically several concerns. How do you I get my medical bill paid? Who will pay me if I need to be taken off work while I recover? If I am taken off work, can my employer terminate me or otherwise retaliate against me? If you are the primary breadwinner for your family, it can be even more difficult. Fortunately, you do not have to worry in silence and can have your questions answered and your concerns addressed. This will reduce the stress of being involved in a work injury.
At Jerome, Salmi & Kopis, LLC, our experienced workers’ compensation attorneys have decades of experience helping injured workers navigate the worker’s compensation courts. We care deeply about the outcome of each and every case and we fight for our clients as if they are our family. Our goal is to help you understand your rights and have all the information they need to make educated and practical decisions about their own injuries. So, if you are injured at work, please call us and we can answer your questions and move quickly to make certain that your rights are fully protected.
FAQs — MISSOURI WORKERS' COMPENSATION
If you have sustained a work injury, the first question usually raised is, “Do I need an attorney?” While the Workers’ Compensation system was originally set up for all employees to obtain benefits without an attorney, the current financial and legal trends often require the assistance of legal counsel. As a result, if your case falls into one of the categories below, you may need to seek advice from a competent attorney:
- You are not comfortable dealing with the workers’ compensation insurance adjuster or their attorneys and would prefer to have legal counsel advising you of your rights at the outset.
- The employer or workers’ compensation insurance carrier refuses to report your case to the Missouri Division of Workers’ Compensation.
- Your case was denied by the workers’ compensation insurance carrier but you feel that your injury was due to an accident or occupational disease that occurred at work.
- The workers’ compensation insurance carrier has accepted your case but has not provided medical treatment or returned your telephone calls.
- The workers’ compensation insurance carrier has accepted your case but has not been paying your lost time benefits; has not been paying your lost time benefits in a timely manner; or has not been paying your lost time benefits at the correct rate in spite of being taken off of work by the treating doctor.
- The workers’ compensation insurance carrier has accepted your
case but has not paid the medical bills associated with your treatment.
- The workers’ compensation insurance carrier has assigned a
rehabilitation nurse to monitor your case.
- The treating doctor has released you from his care, but you still feel that you need medical care.
- The work injury has removed you from your profession and you have
questions regarding whether you will ever be able to return to work in any capacity.
- You have sustained a disabling occupational disease such as silicosis or asbestosis that you feel is related to exposure at work.
The bottom line is that you may be able to settle your case without an attorney if your case has been accepted and all medical and lost time benefits have been paid. These settlements are subject to approval by an Administrative Law Judge (ALJ) who will require that you appear in court to complete the paperwork. However, please note that while the ALJ will review the settlement to make certain that the settlement offer is within a range of value, he/she will not spend an extended period of time reviewing your medical records to identify whether the settlement is fair based upon the unique problems associated with your case.
As a result, many injured employees do not feel comfortable negotiating a settlement without the assistance of an attorney. Many employees are concerned that they may be at the mercy of the insurance company’s adjuster or its attorneys who may be more knowledgeable of the Workers’ Compensation laws. Additionally, these employees are concerned that they may mistakenly give up a potential benefit such as future medical treatment or vocational rehabilitation of which they may not have been aware.
Additionally, it should be noted that attorney’s fees are contingency based, which means that it is a percentage of the final settlement. The same percentage of attorney’s fees of 25% apply whether the attorney is hired at onset of the injury or at the time of settlement. As a result, many injured employees choose to obtain legal advice early in their case to make certain they have someone on their side protecting their legal rights and to make certain that they are treated fairly by the workers’ compensation insurance carrier.
Under the law, with respect to any accident, an employee has to provide written notice of the time, place and nature of the injury, and the name and address of the person injured to the employer, no later than thirty (30) days after the accident. The best means to do so is often a text message to a Supervisor as it provides the employee with written proof of the notice.
There is also a notice requirement for occupational disease or repetitive trauma injuries. The employee has to provide written notice, no later than thirty (30) days after the diagnosis of the condition, unless the employee can prove that the employer was not prejudiced by failure to receive the notice. As with specific accidents, texts provide the best proof.
Many work injuries take months to years to reach a final resolution. Once medical treatment is completed, a final trial may be needed to determine the extent of permanent disability caused by the work injury. However, by the time the trial rolls around, the injured employee may have forgotten many of the specific details regarding the injury and subsequent treatment. In order to help to remember the
details at a later date, it is recommended that injured employees keep a notebook or calendar of important events in his/her case. These important events include the following:
- Detailed description of the accident, including location, witnesses, and a list of the areas of injury.
- Detailed listing of all the medical care facilities where you were treated, including addresses and dates of treatment.
- Listing of any medical bills that you continued to receive or paid out of pocket.
- Listing of specific dates that you missed work as a result of being taken off work by an authorized treating physician.
Following your work injury, you will be contacted by an insurance adjuster representing your employer’s workers’ compensation carrier. He/she may seek to take a recorded statement from you regarding the facts of your work injury. We recommend that regardless of whether the workers’ compensation carrier has accepted, denied or investigating, that you only answer questions specifically relating to the work injury.
Most importantly, we do NOT recommend that you give a recorded statement under any circumstance: There are absolutely no legal requirements that you provide a recorded statement prior to the workers’ compensation carrier being obligated to pay your benefits. Recorded statements are only taken by the insurance company so that they can be used against you at a later trial. If a workers’ compensation carrier insists that you provide a recorded statement prior to them authorizing treatment or lost-time benefits, seek immediate legal counsel.
Following your work injury, the workers’ compensation carrier will send you paperwork that may include a report of injury and almost always includes a medical authorization. If you are sent a report of injury, review the report thoroughly and make any and all modifications as you see fit. Make certain to retain a copy of the report in case it is needed for subsequent litigation.
If you are sent a medical authorization, you should thoroughly read the authorization. If the authorization is limited exclusively to obtaining copies of your medical records pertaining to the present work injury, you can sign and return that document. However, if the medical authorization allows the insurance company to communicate directly with your treating doctors, delete those entries before signing the authorization. The Workers’ Compensation Act allows injured employees to retain the doctor-patient privilege and therefore the workers’ compensation insurance carrier can only discuss the case with your treating doctor if you grant them authority. Otherwise, the workers’ compensation insurance carrier is limited to the reports and disability slips generated by your doctor.
Beware of visits from rehabilitation nurses: While undergoing treatment following a work injury, you may be assigned a rehabilitation nurse. Many rehabilitation nurses are helpful in expediting medical treatment and benefits. However, many rehabilitation nurses are merely investigative agents for the insurance company. Their purpose is to extensively question you to try to provide the workers’ compensation insurance carrier with a possible defense to deny your case altogether.
Additionally, many rehabilitation nurses meet with your treating doctor regarding your treatment without you being present or even being aware of the meeting. These rehabilitation nurses may seek to have the doctor alter the off work slips and return you to work sooner than originally scheduled. Additionally, the rehabilitation nurse may seek to encourage the doctor to release you from his/her care sooner than the doctor may have planned.
Once a rehabilitation nurse is assigned to your case, we would recommend that you seek legal counsel. If you opt to continue representation on your own, we recommend that you do not sign any medical releases with the nurse that includes language allowing him/her to have any direct conversations with your treating physicians or therapists. Additionally, we would recommend that you advise him/her that any conversations with your doctor must take place in your presence. Do not answer questions about your medical condition with the rehabilitation nurse other than updating them on your current status following the work injury.
Under the Missouri Workers’ Compensation Act, an injured worker has up to 2 years to file a formal Claim for Compensation. If you fail to file a timely Application, you case may be forever barred from receiving further benefits. This Statute of Limitation has some exceptions associated with the employer filing a timely Report of Injury or the insurance carrier maying payments of benefits but it is recommended that the paperwork be filed within the 2 year timetable to avoid any legal disputes on this issue. If in doubt, contact us for further clarification.
In most circumstances, if you are off work because of a work- related injury, you are eligible to receive temporary total disability (TTD) benefits to replace your lost wages. You are eligible if you have missed more than three regularly scheduled workdays. These are regularly scheduled workdays of your employer. If you miss more than two weeks, these first three days, referred to as the waiting period, are paid to you.
The amount you receive is based on two-thirds of your average weekly wage; also known as the compensation rate. The statutory maximum for the compensation rate under Missouri law is 105 percent of the State Average Weekly Wage. The Missouri Division of Workers’ Compensation maintains charts on its website showing the maximum weekly benefit rates.
EXAMPLE: If you earn $300.00 per week, your TTD benefits would be $200, which is two-thirds of your average weekly wage. If you earned $2,250.00 per week, two-thirds of your average weekly wage would be $1,500.00, but your TTD benefit would be capped at approximately $948.00, the maximum amount noted in the chart as determined by the date of injury.
Your average weekly wage is computed based on your gross wages over the thirteen (13) weeks prior to the date of injury. Your wages are added up for that duration and divided by thirteen (13) to calculate your average weekly wage. However, there are unique calculations if you missed days during the 13 weeks.
Temporary total disability benefits are not paid for the first three work days lost after a work injury, unless the disability continues for 14 or more calendar days. After missing 14 days, you are entitled to be paid for the first three days of lost time.
Temporary Partial Disability
If you are released by your doctor to return to work for less than a full work day, you are entitled to receive disability payments for those portions of the days that you are not entitled to work. For example, if the treating doctor limits you to 4 hours of work out of an 8 hour shift, the employer is responsible for paying you for the 4 hours worked while the workers’ compensation carrier is responsible for paying you two-thirds of the remaining 4 hours.
Injured employees are entitled to receive all necessary first aid, medical, surgical and hospital services reasonably required to cure and relieve the effects of the injury or disease. Where necessary, the employee may also be entitled to physical, mental and vocational rehabilitation. This is often problematic as all group health insurance policies refuse to cover work related medical care.
Keep in mind that it is the employer’s obligation to provide medical treatment, and the employer that provides medical treatment has the right to select the medical provider or physician. The employee has the right to select his/her own physician, but at their own expense. There are statutory requirements of providing notice prior to seeking medical treatment.
An exception exists if the employer refuses to provide medical care for a work injury. In such cases, the employer abandons its right to chose and direct medical care and the injured worker may seek treatment with a doctor of his/her choosing. It is strongly recommended that before you seek treatment on your own that you obtain legal advice from a competent attorney to prevent you from being held responsible from multiple medical bills.
Permanent Partial Disability
After your treatment is completed, your doctor will release you from his care indicating that you have reached a point where your condition will get no better. This condition is known as “maximum medical improvement.” If you are able to return to work, you may still be entitled to a final settlement based upon the permanent loss or loss of use of a part of your body or the whole body.
Factors that are considered in determining the extent of the permanent partial disability include the physical impairment and the effect of the disability on the injured worker’s life. Other factors include the pain, stiffness and limitation of motion caused by the work injury. It should be noted that not all injuries or diseases result in permanent partial disability.
The disability benefit that is paid for any permanent residual effect of your injury is called permanent partial disability. This is a lump sum benefit that is paid to you after the injury has been treated and you have recovered to the fullest extent possible. The permanent partial disability benefit is paid to compensate you for the permanent residual effect of the injury. These payments are based on a weekly schedule for various body parts, the rating of that permanent injury and your average weekly wage.
In order for your case to be settled, you may need to obtain a medical opinion from an independent doctor who will provide a rating of permanent partial disability for your work-related injury. The doctor’s opinion of the permanent effect of the injury is usually given as a percentage of a body part such as an arm, leg or finger. Each injury begins with identifying the part of the body injured using the chart below:
EXAMPLE: The leg at the hip is rated at 207 weeks, the arm at the shoulder at 232 weeks, the index finger at the first knuckle at 45 weeks, and the body as a whole at 400 weeks.
Your compensation rate is calculated the same way as the temporary total disability benefit, which is two-thirds of your average weekly wage. However, once the body part is identified, the percentage of disability is applied to that body part and then multiplied by 66-2/3% of the injured worker’s average weekly wage. The maximum rate is lower at 55 percent of the State Average Weekly Wage. As with temporary total disability benefits, the Missouri Division of Workers’ Compensation maintains charts on its website showing the maximum weekly amounts payable. Below are some examples of the calculations:
EXAMPLE: Assume you have an injury to your wrist that settles for 10% disability of the wrist. The wrist begins at the 175-week level. So if the rating is 10 percent, your settlement will be based on 10 percent of 175 weeks or 17.5 weeks. Assume your average weekly wage is $300.00.
Your compensation rate (two-thirds of your average weekly wage) is $200.00. The compensation rate of $200.00 times the 17.5 weeks comes to $3,500.00. The total PPD benefit would be $3,500.
175 x 10% = 17.5 weeks x $200.00 = $3,500.00
The Administrative Law Judge is the final decision maker on the appropriateness of the rating and the average weekly wage. However, the parties may agree on settlement amounts as well as AWW. However, unless you are represented by an attorney, you will need to appear before and Administrative Law Judge for final approval of the settlement.
PLEASE NOTE THAT THE ADMINISTRATIVE LAW JUDGE IS NOT ABLE TO GIVE YOU LEGAL ADVICE AND CAN ONLY INQUIRE WHETHER YOU WANT TO PROCEED WITH THE SETTLEMENT OFFER MADE BY THE INSURANCE COMPANY. BEFORE YOU ACCEPT THIS OFFER, WE STRONGLY RECOMMEND THAT YOU SEEK LEGAL ADVICE ON THE APPROPRIATENESS OF THE OFFER.
Please remember that when you settle your case, it traditionally closes out your medical benefits. So, before you discuss settling your case make certain that your medical condition has reached a point were nothing further can be done to improve your medical status.
Alternatively, if your medical condition requires ongoing medical care, you will probably need a final trial and will not be able to settle your case. As part of the final award, the Administrative Law Judge will provide a written award detailing the percentage of disability and discussing the issue of future medical care.
If the employee is seriously and permanently disfigured about the head, neck, hands or arms, the judge may allow additional weeks of compensation, not to exceed 40 weeks. Disfigurement can include surgical scars but only to the body parts listed above.
While you are off work due to a work injury, your employer is to continue your group health insurance. However, your employer can you ask that you pay for your portion of the premiums. Since the lost time benefits are being paid by the workers’ compensation insurance company to you, you may need to write a check to your employer to maintain these benefits. If you find yourself in this situation, contact your benefits supervisor who will be able to address this issue.
The FMLA is the Federal Medical Leave Act which a federal law that runs concurrent with the Illinois Workers’ Compensation Act. It provides certain employees with up to 12 weeks of job-protected leave per year. The FMLA also requires that the employer maintain your health insurance during that duration so long as you pay the employee portion of the premiums. The FMLA can be extended beyond the 12 weeks at the discretion of the employer.
Medical treatment stemming from a work accident should be covered by the workers’ compensation insurance company. Further, most group health insurance has an exclusion provision noted that it does not cover work-related medical care. However, if the workers’ compensation insurance company will not approve medical treatment; has not yet set-up its file; or is still investigating the claim, you can use your group health insurance by advising the insurance company that you claim is being denied by the workers’ compensation insurance company. Please be aware that if this should occur, you must make certain to have the workers’ compensation insurance company reimburse the group health insurance company or you could be responsible for reimbursing it.
Under the Missouri Worker’s Compensation Act, it is illegal for an employer to terminate an employee solely due to filing a workers’ compensation claim. Such cases are very fact specific as the Courts will look at the intent of the employer and whether the employer also had a legitimate basis for termination. If you are terminated, it is strongly recommended that you seek immediate legal assistance as there are limited timetables for filing a complaint.
Under the Missouri Workers’ Compensation Act, if you sustained a work injury that results in permanent work restrictions, there is little under the Act that requires that the employer provide for any for of vocational assistance. As a result, if there are permanent work restrictions, the only remaining issue surrounds whether the restrictions are severe enough to remove you from being employable. If you are employable, the issue focuses on settling on a permanent partial disability basis. If you are not employable, then you would be entitled to permanent total disability benefits.
After being released by your doctor, if you are given significant work restrictions preventing your return to work at any position in the open labor market due to your work injury, you may be entitled to receive two-thirds of your average weekly wages for the remainder of your life. There are two ways that you can be found permanently and totally disabled.
First, you can be medically disabled. This occurs when your treating doctor concludes that you are medically unable to return to work in any capacity. Second, if your doctor places permanent restrictions as a result of the work injury with the effect being that you are unable to return to work, you may be vocationally permanently totally disabled.
Under the second scenario, your status of being unemployable and permanently totally disabled only occurs if a vocational specialist concludes that you are unable to compete in the open labor market. As with the medical conclusions, this vocational opinion may be challenged by the employer.
IF YOU BELIEVE THAT YOU ARE PERMANENTLY TOTALLY DISABLED, YOU WILL NEED IMMEDIATE LEGAL ASSISTANCE.
Almost all cases of permanent total disability require at least one trial to establish the weekly benefits. Additionally, most permanent total disability cases include issues of future medical care and/or medications which require an Administrative Law Judge’s award following a trial.
If you find yourself unable to return to work in the open labor market, you will also need to consider benefits outside of the workers’ compensation system. These benefits can include social security disability, short-term disability, and long-term disability. Union members should also inquire regarding disability policies at both the local and international levels.
When considering benefits outside of the workers’ compensation system, you should be aware that there is a complex and complicated interplay between each of the benefits. If you seek legal counsel, make certain that they are familiar with the interplay of the various benefits and can provide you with the most favorable results from each benefit.
Under the Workers’ Compensation Act, the State of Missouri has jurisdiction over a work injury if it is location of accident; where the contract for employment was completed; or where the employer is located. Because of the various factors used in determining jurisdiction, it is possible for multiple States to retain jurisdiction over the same accident. While you would not be entitled to double-recovery, you retain the option in choosing the State where you would seek to make your claim. If you believe that you have a work accident that would qualify for benefits in Missouri but the adjuster is trying to use a different State, contact an attorney immediately to protect your rights.
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